Ripple, Circuit Judge.
Five wheelchair-using detainees brought this lawsuit against Cook County, Illinois, and the Sheriff, alleging violations of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RHA"). Their claims are based on purportedly inaccessible ramps and bathroom facilities at six county courthouses. The district court certified a class for purposes of injunctive relief, and the named plaintiffs also sought damages individually for the same alleged violations.
The district court held an evidentiary hearing on the equitable claims first. The parties then filed cross motions for summary judgment on their individual damage claims. The court entered a permanent injunction based on its factual findings and legal conclusion that the defendants had violated the ADA. Then, relying largely on these findings, the court granted partial summary judgment to the plaintiffs on liability in their personal damage actions.
We hold that the district court improperly relied on its own findings of fact when it granted partial summary judgment to the plaintiffs on their damage claims. When equitable and legal claims are joined in a single suit, common questions of fact should be tried first to a jury absent extraordinary circumstances or an unequivocal waiver by all parties of their jury trial rights. The record before us does not reflect any such waiver by the defendants. We therefore vacate the grant of partial summary judgment and remand for a jury trial on the question of liability. As a result, we also vacate the court's grant of permanent injunctive relief and vacate the jury's determinations of damage awards. We leave undisturbed the district court's decisions to certify the class and to grant supplemental injunctive relief to the class. This latter injunction is not related to the questions that should have been submitted to the jury. Accordingly, we affirm in part, vacate in part, and remand for further proceedings.
In 1990, Congress enacted the ADA to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). This sweeping legislation was animated by the finding that "individuals with disabilities continually encounter various forms of discrimination," ranging from "outright intentional exclusion" to "the discriminatory effects of architectural, transportation, and communication barriers." Id. § 12101(a)(5). The ADA was crafted "to advance equal-citizenship stature for persons with disabilities," Tennessee v. Lane, 541 U.S. 509, 536, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (Ginsburg, J., concurring), and to remedy their status as "a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society," id. at 516, 124 S.Ct. 1978 (majority opinion) (quoting 42 U.S.C. § 12101(a)(7)).
The ADA is organized into three titles prohibiting discrimination across three major spheres of public life: employment (Title I); public services, programs, and activities (Title II); and public accommodations (Title III). This case arises from the protections of Title II.
The obligation to make "reasonable modifications" parallels the obligations to make "reasonable accommodations" in the context of Titles I and III. See A.H., 881 F.3d at 592 (recognizing corresponding language in Title II regulations and Title III). These requirements derive from the understanding that certain practices can discriminate against individuals with disabilities even when those practices are facially neutral and consistently applied. See Lane, 541 U.S. at 536, 124 S.Ct. 1978 (Ginsburg, J., concurring) ("Congress understood in shaping the ADA [that addressing discrimination] would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation.").
Perhaps the most obvious example of such discrimination is when structural barriers prevent people with disabilities from accessing otherwise available public services. To remedy this form of discrimination, the DOJ has adopted structural accessibility standards that apply to newly constructed or altered facilities subject to Titles II and III. See 28 C.F.R. § 35.151(c).
When public entities offer services at inaccessible facilities built before 1992, it is clear that they can comply with Title II by
This case centers on the facilities of six courthouses in Cook County, Illinois. The plaintiffs are five wheelchair-using detainees: Johnathan Lacy, Kenneth Farris, Marque Bowers, Maurice Boston, and Kevin Dawson. They each attended court approximately once per month in connection with their individual criminal cases. Their court appearances took place at the Leighton Criminal Courthouse in Chicago or at one of five suburban courthouses in Maywood, Markham, Skokie, Rolling Meadows, and Bridgeview. All of these courthouses were built before 1992 and thus are not subject to the ADA's structural accessibility standards. See Lane, 541 U.S. at 532, 124 S.Ct. 1978; 28 C.F.R. § 35.150(b)(1). Nonetheless, to the extent that the facilities prevent individuals with disabilities from meaningfully accessing public services, reasonable modifications are required. 42 U.S.C. §§ 35.130(b)(7)(i), 35.150(a).
The plaintiffs contend that Cook County and Thomas J. Dart, the Sheriff, failed to provide reasonable modifications with respect to two structural barriers at the courthouses: ramps and bathroom facilities.
During the relevant time period, the ramps and bathroom facilities did not comply with the latest accessibility standards.
The defendants maintain that they have complied with the ADA by enacting a policy of assisting wheelchair-using detainees with the ramps and by providing portable commode chairs in at least one holding cell per courthouse. They also submit that courthouse personnel were instructed to escort wheelchair-using detainees to public, ADA-compliant restrooms in the event of an emergency. According to the plaintiffs, however, they were not consistently assisted and often had to maneuver the ramps alone. They also insist that they could not use the commode chairs, or could do so only with great difficulty, and that they were not escorted to public, ADA-compliant restrooms as an alternative.
The plaintiffs filed this action in August 2014. They sought prospective injunctive
The evidentiary hearing lasted seven days over a span of two full months. The plaintiffs presented testimony from ADA experts and a number of wheelchair-using detainees, including Mr. Dawson and Mr. Farris, who testified to the barriers they faced when attending court. The hearing also featured testimony from court service officers and Sheriff's personnel, including the ADA compliance coordinator and ADA project director, who testified to the ongoing renovation of the County courthouses. The parties also submitted video footage showing wheelchair-using detainees traversing the ramps and using the holding cell bathrooms with disputed degrees of difficulty. Throughout the proceedings, the parties fiercely contested whether the Sheriff enforced the ramp-assistance policy and whether the portable commode chairs adequately accommodated the plaintiffs. Notably, although the district court had ordered the consolidation of the preliminary injunction hearing with a trial on the merits, it referred throughout the proceedings to a "preliminary injunction."
After the close of the hearing but before it issued a decision, the court granted the plaintiffs' pending motion for class certification and certified the class of "[a]ll Cook County Jail detainees who have been assigned and currently use a wheelchair."
On June 10, 2015, the court again reversed its earlier ruling and stated that it would "not combine its consideration of the motion for [a] preliminary injunction with [a] ruling on the final merits of the case."
Before the court issued a decision on injunctive relief, it collected summary judgment briefs from both sides on the plaintiffs' individual damage claims. The named plaintiffs filed a motion seeking partial summary judgment on the question of ADA liability, and the defendants filed a cross motion for complete summary judgment. Both sides submitted Local Rule 56.1 statements of material fact and responded in opposition to the other's summary judgment filings.
On October 8, 2015, before ruling on summary judgment, the court issued an
The court's opinion contained extensive findings of fact and conclusions of law. Based on "what it [found] to be most relevant" in the record, the court found that the defendants had not consistently helped wheelchair-using detainees maneuver the ramps.
Based on these findings, the court granted the plaintiffs' request for a permanent injunction with respect to the ramp-assistance policy, but it denied their request for a declaratory judgment.
On November 19, 2015, the court granted partial summary judgment to the plaintiffs on the question of liability in their individual damage actions. The court acknowledged that "[o]rdinarily, the following facts would be undisputed and come from the parties' Local Rule 56.1 statements and responses."
The district court recognized that we have not yet spoken on the proper standard for establishing intentional discrimination. See Strominger v. Brock, 592 F. App'x 508, 511-12 (7th Cir. 2014) (acknowledging our silence on the matter). Absent guidance from our court, the district court adopted the deliberate indifference standard advocated by the parties and employed by a majority of other courts of appeals.
The court held that there was "no genuine issue of material fact as to defendants' knowledge of likely ADA violations and their failure to act in light of that knowledge."
After granting the plaintiffs' motion for partial summary judgment on liability, the court proceeded with jury trials to determine the amount of damages owed to each named plaintiff. A jury awarded Mr. Lacy $600 in damages and Mr. Boston and Mr. Bowers $0 in damages. Mr. Dawson and the defendants reached a private settlement. Mr. Farris and the defendants agreed to a judgment in Mr. Farris's favor for $0.
On January 7, 2016, the plaintiff class filed a motion for a supplemental permanent injunction to remedy the County's alleged failure to bring two holding cells at the Maywood courthouse into compliance with the ADA's clear-floor-space requirements. According to the plaintiffs, the County had made alterations to these holding cells, thereby triggering its obligation to bring the facilities into complete compliance with the latest accessibility standards. But, under the pertinent standards, the privacy screens in the holding cells were 1.5 inches too close to the rear walls. The County maintained that it was excused from strict compliance with the accessibility standards because it altered only certain elements within the holding cells and because moving the screens was technically infeasible. The court rejected the County's arguments and granted a permanent injunction ordering that the screens be moved, but it stayed its order pending this appeal.
The defendants now challenge four of the district court's orders: (1) the grant of partial summary judgment on liability in favor of the individual plaintiffs, (2) the jury verdict and $600 damage award in favor of Mr. Lacy, (3) the certification of the class, and (4) the grant of a permanent injunction regarding the Maywood privacy screens. For the reasons laid out below, we vacate the district court's grant of partial summary judgment; vacate the jury's verdicts
The defendants contend that the district court erred in granting summary judgment to the plaintiffs on the issue of ADA liability in their individual damage actions. They submit that, by relying on findings of fact from its prior decision to grant a permanent injunction, the court improperly weighed competing evidence and made credibility determinations and thereby usurped the role of the jury in the plaintiffs' damage claims. We agree.
In this action, the plaintiffs sought both equitable and legal relief to remedy the defendants' alleged ADA violations. They pursued the equitable claims on behalf of the class, seeking a prospective injunction against ongoing ADA violations. Simultaneously, the named plaintiffs brought damage actions on an individual basis, seeking monetary compensation for past ADA deprivations that they each claim to have suffered. These equitable and legal claims all required the factfinder to determine whether the defendants had violated the ADA by failing to provide reasonable modifications for wheelchair-using detainees with respect to the courthouse ramps and bathroom facilities.
It is well established that "when a legal claim is joined with an equitable claim, `the right to jury trial on the legal claim, including all issues common to both claims, remains intact.'" Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 354 (7th Cir. 1987) (quoting Curtis v. Loether, 415 U.S. 189, 196 n.11, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974)).
In this case, the order of proceedings was complicated further by the plaintiffs'
Under Federal Rule of Civil Procedure 65(a)(2), the district court was authorized to consolidate the hearing on preliminary injunctive relief with a trial on the merits; however, in so doing, the court was obligated to "preserve any party's right to a jury trial." Fed. R. Civ. P. 65(a)(2).
Here, throughout the hearing, the district court sent extremely mixed messages about the nature of the hearing itself. The record reveals that none of the participants understood exactly what the court was deciding — preliminary or permanent injunctive relief. Prior to the start of the hearing, the court denied the plaintiffs' request for consolidation. Then, during and after the hearing, the court reversed this decision three separate times. Moreover, even at the time when the court had consolidated the hearing as a formal matter, it continually referred to a "preliminary injunction" as the remedy at stake.
After the close of the hearing, the court continued to send conflicting messages. On June 10, 2015, the court reversed its earlier order and ruled that it would not "combine its consideration of the motion for preliminary injunction with ruling on the final merits."
In these confusing circumstances, the defendants certainly did not waive their right to a jury trial by participating in the consolidated hearing. It is true that a party can waive its jury trial rights by participating in and failing to object to a non-jury fact-finding proceeding.
Based on the record before us, we have no doubt that the district court failed to communicate its intent to make conclusive factual determinations in the hearing on injunctive relief. Given these particular circumstances, the defendants' participation in and failure to object to the hearing cannot be understood as "clear, unequivocal evidence" of waiver. Reboy, 9 F.3d at 1306. Absent such a waiver, the court should have held a hearing on the preliminary injunction, then tried the legal issues to a jury, and then held a hearing on the permanent injunction. See Southland, 534 F.2d at 644. Instead, by granting a permanent injunction without clear notice of consolidation, and then affording preclusive effect to its own findings of fact on central disputed questions, the court deprived the defendants of their right to a jury trial on
The district court's error in relying on its own factual findings with respect to the damage claims has several important ramifications. We address them now.
First, it follows from our decision above that we must vacate the jury's verdicts on the question of damages. Accordingly, the jury's verdicts respecting Mr. Lacy, Mr. Boston, and Mr. Bowers are vacated for further proceedings. Mr. Dawson entered into a monetary settlement with the defendants, and Mr. Farris consented to a judgment of $0 in damages. It is unclear from the record, however, whether either of these agreements was conditioned on the defendants' right to challenge the underlying proceedings or whether the defendants waived their rights to review as to those two plaintiffs. See McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 843-44 (7th Cir. 2009) (noting that consensual nature of a judgment does not affect appellate jurisdiction but may affect the consenting party's right to review); Hudson v. Chi. Teachers Union, Local No. 1, 922 F.2d 1306, 1312-13 (7th Cir. 1991) (emphasizing the importance of "practicalities" and explaining that, although settlements generally are not appealable, a stipulated judgment may not foreclose appellate review if the stipulation extends only to the matter of damages). We thus leave it to the district court, which is far more familiar with the record, to determine whether it is proper to include Mr. Farris and Mr. Dawson in the jury trial on remand.
Second, we must address the effect of our holding on the district court's grant of permanent injunctive relief with respect to the Sheriff's ramp policy. Had the district court followed the instruction in Beacon and submitted the common questions of fact to a jury before rendering its own decision on the permanent injunction, the court would have been bound by the jury's factual determinations. See Allen v. Int'l Truck & Engine Corp., 358 F.3d 469, 471-72 (7th Cir. 2004); Hussein, 816 F.2d at 355. Therefore, if not for the court's error, the defendants would have been entitled to a jury determination on all of the facts underlying the alleged ADA violations. Because "most if not all of [the] elements [of the damage claims were] presented to the wrong trier of fact," the court's error "infect[ed] the disposition" of the equitable claims as well. Bouchet v. Nat'l Urban League, Inc., 730 F.2d 799, 803 (D.C. Cir. 1984).
In these circumstances, "relitigation is the only mechanism that can completely correct the error of the court below." Lytle
We now address those matters raised on appeal that are not tainted directly by the deprivation of a jury trial.
The district court, noting that the matter was undecided in this court, determined that damages could be awarded for the ADA violations upon a showing of deliberate indifference on the part of the defendants. On remand, a jury will have to determine in the first instance whether the defendants have violated the ADA with respect to each named plaintiff. If it finds a violation, the same jury will have to decide whether any ADA violations were the result of intentional discrimination. See Love, 103 F.3d at 561 (upholding award of damages in ADA case where jury found intentional discrimination). As the district court recognized, many courts of appeals have spoken on the standard for establishing intentional discrimination, although we have yet to decide the issue. See Strominger, 592 F. App'x at 511-12. Considerations of judicial economy counsel that we decide it today.
As this question has percolated through the courts, our sister circuits have considered two standards for intentional discrimination: deliberate indifference and discriminatory animus. See S.H., 729 F.3d at 262-63 (laying out both standards and adopting the former); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344-45 (11th Cir. 2012) (same); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (same). Deliberate indifference occurs when "the defendant knew that harm to a federally protected right was substantially likely and ... failed to act on that likelihood." Liese, 701 F.3d at 344 (alteration and emphases in original) (quoting T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., 610 F.3d 588, 604 (11th Cir. 2010)). It is meant to identify indifference that is a "deliberate choice." Id. (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 276 (2d Cir. 2009)). "Discriminatory animus, by contrast, requires a showing of prejudice, spite, or ill will," and is "generally thought to be a combination of intentionally differential treatment and a disdainful motive for acting that way." Id.
Although some courts of appeals appear to have applied heightened standards in certain contexts, most of our sister circuits have adopted deliberate indifference as the proper standard for obtaining compensatory damages under Title II and section 504.
This standard is sensible based on the clear purpose and evolution of the ADA. Title II was modeled after section 504, which was meant to combat discrimination that is "most often the product, not of invidious animus, but rather of thoughtlessness and indifference — of benign neglect." Alexander v. Choate, 469 U.S. 287, 295, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). One commentator interpreted the ADA's statutory findings in light of its legislative history and concluded that, "[e]ven absent animus-based prejudice, people with disabilities may be deprived of opportunities" which the ADA aims to protect. Samuel R. Bagenstos, Subordination, Stigma, and"Disability", 86 Va. L. Rev. 397, 423 (2000); see also 42 U.S.C. § 12101(a)(7) (statutory finding that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity [and] full participation ...."). Moreover, the "reasonable modification" requirement at the heart of this case clearly indicates the intent to combat exclusion that "is literally built into our physical and social environment," Bagenstos, Subordination, supra, at 425, even if it is not motivated by spite or ill will. Given this statutory framework, we agree with the Third Circuit that "the deliberate indifference standard is better suited to the remedial goals of the... ADA than is the discriminatory animus alternative." S.H., 729 F.3d at 264.
The defendants next challenge the district court's certification of the class of "[a]ll Cook County Jail detainees who have been assigned and currently use a wheelchair."
Id. (quoting Fed. R. Civ. P. 23(a)). Second, the plaintiffs must demonstrate that one of the conditions of Rule 23(b) is met. Here, the plaintiffs sought certification under Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Lastly, we have required that a class be "sufficiently definite that its members are ascertainable." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012).
The defendants first contend that the class is not ascertainable because "it encompassed anyone who could possibly require assistance of a wheelchair, regardless of if they suffered any deprivation under the ADA."
There is no precise tipping point at which a class includes too many people who have not been harmed. "Such determinations are a matter of degree, and will turn on the facts as they appear from case to case." Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). Here, we are confident that the balance tips in favor of certification. According to the Department of Corrections, which keeps records of detainees who are assigned wheelchairs, there were approximately sixty detainees who qualified for the class at the time of certification.
Although it is true that the reasonableness of a given accommodation will vary among individuals with differing disabilities, any dissimilarities among the proposed class members will not impede the generation of common answers in this case. We have acknowledged that "[w]hether a requested accommodation is reasonable or not is a highly fact-specific inquiry and requires balancing the needs of the parties." A.H., 881 F.3d at 594 (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)). The fact-specific nature of this inquiry may preclude class certification in some cases, for instance if the plaintiffs here had alleged a variety of disabilities or had sought a variety of accommodations based on their differing abilities. See, e.g., Phillips, 828 F.3d at 555 (finding lack of commonality where purported class members "each present a different situation that involved a different type of dental pain, took place at a different time, involved different medical professionals and prison staff, and concerned a different alleged deficiency in the treatment process").
Here, however, commonality abounds. The plaintiffs share a common physical impairment, as they are all confined to wheelchairs when attending court. Furthermore, they face common physical barriers when they confront steep ramps and noncompliant bathroom facilities. And finally, they seek common modifications in the form of mandatory policies for assistance in pushing them up and down the ramps and escorting them to ADA-compliant restrooms. This is not a situation where "the defendant's allegedly injurious
The defendants' challenge to the typicality requirement fails for largely the same reasons. Cf. Wal-Mart, 564 U.S. at 349 n.4, 131 S.Ct. 2541 (noting that the "commonality and typicality requirements... tend to merge" (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982))). A "plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [is] based on the same legal theory." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). This requirement "is meant to ensure that the named representative's claims `have the same essential characteristics as the claims of the class at large.'" Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (quoting Retired Chi. Police Ass'n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993)). Here, the named plaintiffs alleged the same injurious conduct and requested the same modifications as the class at-large. We see no reason to question the typicality of their claims.
Finally, the defendants ask us to decertify the class because Mr. Farris, Mr. Dawson, and Mr. Bowers supposedly are not credible and thus are not adequate representatives of the class. "A named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative." CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011). That is only the case, however, if the evidence is "so severely undermining [of his] credibility that a fact finder might reasonably focus on [his] credibility, to the detriment of the absent class members' claims." Id. at 728 (quoting Dubin v. Miller, 132 F.R.D. 269, 272 (D. Colo. 1990)).
Although the district court harbored "serious doubts about plaintiff Farris' credibility," it concluded that "[n]othing about plaintiff[s] Dawson, Bowers, and Farris' alleged credibility issues indicate that they have an antagonistic or conflicting claim, or that they do not have sufficient
Because the defendants have not undermined the ascertainableness of the class or the district court's findings of commonality, typicality, and adequacy of representation, we affirm the class's certification under Rule 23(b)(2).
The defendants' final challenge relates to the district court's grant of a supplemental permanent injunction. After this litigation commenced, the County modified two holding cells at the Maywood courthouse to bring them into partial compliance with the latest accessibility standards. The County updated the holding cell entryways, replaced the metal benches, and installed new lavatory fixtures and grab bars; however, it did not remove or reposition the privacy screens.
The parties agree that under the latest accessibility standards, these privacy screens are 1.5 inches too close to the rear walls of the cells. They disagree, however, as to whether the accessibility standards require the County to remove or reposition the screens. After receiving supplemental briefing and conducting a limited evidentiary hearing, the district court concluded that the accessibility standards mandated the County's full compliance with the clear-floor-space requirements. It thus issued a permanent injunction requiring the County to move the privacy screens by 1.5 inches.
We review the court's grant of injunctive relief for an abuse of discretion; however, we review its factual determinations for clear error and its underlying legal conclusions de novo. See ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist. (ADT II), 724 F.3d 854, 863 (7th Cir. 2013). Permanent injunctive relief is appropriate when a plaintiff has shown: "(1) success ... on the merits; (2) irreparable harm; (3) that the benefits of granting the injunction outweigh the injury to the defendant; and, (4) that the public interest will not be harmed by the relief requested." ADT Sec. Servs., Inc. v. Lisle-Woodridge
Although the ADA does not require public entities to renovate facilities built before 1992, once a public entity alters such facilities, it is generally required to bring them into compliance with the latest accessibility standards. The implementing regulations codify this requirement as follows.
28 C.F.R. § 35.151(b)(1). Furthermore, if these alterations are commenced after March 15, 2012, they must comply with the latest accessibility standards: the 2010 ADA Standards for Accessible Design, which incorporate the 2004 ADA Accessibility Guidelines ("ADAAG"). See id. § 35.151(c)(3).
The County contends that its alterations to the Maywood holding cells did not trigger this complete compliance requirement for two reasons: (1) it did not intend to alter the entire holding cells but only certain elements, and (2) it is technically infeasible to modify the privacy screens. The County relies on section 202.3 of the ADAAG, which states that "[w]here existing elements or spaces are altered, each altered element or space shall comply with the applicable requirements." 36 C.F.R. pt. 1191, app. B at 202.3. Section 202.3 continues to set out the so-called technical infeasibility exception: "In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible." Id. A "technically infeasible" alteration is defined, in relevant part, as "something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame." Id. at 106.5.
We agree with the district court that these provisions do not exempt the County from its obligation to move the privacy screens. Whether the privacy screens are part of the altered elements or spaces, and thus must comply with the 2010 standards, depends on the intended scope of the alteration. The DOJ has explained the reach of section 202.3 in its commentary to the ADAAG:
Dep't of Justice, Guidance on the 2010 ADA Standards for Accessible Design 74 (2010), www.ada.gov/regs2010/2010ADAStandards/Guidance_2010ADAStandards_prt.pdf (emphasis added).
The district court concluded that the County intended to alter the holding cells in their entirety. It based this finding on the defendants' repeated representations that they planned to bring all of the holding cells into compliance with the latest standards. We see no clear error in this factual determination, especially given the circumstantial evidence that the County modified the privacy screens in all of the
The County's second argument is equally unavailing. The County points to testimony by the Sheriff's ADA project director that the privacy screens are "embedded into the wall and the floor" and that removing the screens "will diminish the structural integrity of [the] wall."
As the finder of fact on this matter, the district court was entitled to discredit the conclusory testimony of the ADA project director, especially when compared with the detailed testimony from the contractor. We see no clear error in the court's factual determination that moving the screens would not diminish the integrity of the structural frame. In so holding, we are not endorsing a strict liability standard for noncompliance with the ADAAG, as the County suggests. Rather, questions of technical infeasibility turn on detailed factual determinations about the effects of construction on the structural integrity of altered facilities. In this case, the district court reached a reasoned conclusion based on the competing evidence before it, and we see no reason to disturb its factual findings.
The County has not shown any abuse of discretion by the district court in granting the supplemental permanent injunction. We therefore affirm its judgment on this matter.
For the reasons expressed in this opinion, we vacate the grant of partial summary judgment and, consequently, vacate the jury's verdicts as to Mr. Lacy, Mr. Bowers, and Mr. Boston, as well as the grant of permanent injunctive relief regarding the Sheriff's ramp policy. The effect of our holding on the settlement and judgment for Mr. Dawson and Mr. Farris, respectively, will depend on the district court's finding of waiver, or lack thereof, by the defendants of their right to appellate review as to those two plaintiffs.
In any event, we remand for a jury to decide whether the defendants violated the ADA for purposes of the relevant plaintiffs' damage actions, and, if so, whether any violations were the result of intentional discrimination. We affirm the certification of the class and the grant of permanent injunctive relief with respect to the Maywood privacy screens.
In sum, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. Each party shall bear its own costs for this appeal.
We note that many courts have certified classes based on allegedly unreasonable accommodations. See, e.g., Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) (upholding class certification against commonality challenge where disabled prisoners with heat sensitivities alleged failure to provide reasonable accommodations regarding regulation of temperatures in prison); Holmes v. Godinez, 311 F.R.D. 177 (N.D. Ill. 2015) (finding commonality in Title II case where detainees alleged system-wide failure to accommodate deaf and hearing-impaired inmates); Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012) ("[I]n almost every case involving a challenge under Title II of the ADA and/or Section 504 of the Rehabilitation Act to discriminatory governmental policies and practices, courts have certified a class.").